SAWYER & CLANCY (NO.2) - [2012] FMCAfam 1369

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAWYER & CLANCY (NO.2)

[2012] FMCAfam 1369

FAMILY LAW – Interim arrangements for care of children aged 12,10 & 7 – high conflict between parties – arrangements for children have previously been determined on a final basis in August of 2011 following contested hearing – mother has retained child aged 10 against allegations of abuse – assessment of risk – nature of interim hearing – best interests.

Family Law Act 1975, ss.60B; 60CC; 61DA; 65DAA; 68L; 69ZW

Sawyer & Sawyer [2010] FMCAfam 329
Sawyer & Sawyer [2011] FMCAfam 780
Clancy & Sawyer [2012] FMCAfam 802
Goode & Goode (2006) FLC 93-286

Applicant:

MR SAWYER

Respondent:

MS CLANCY

File Number:

ADC 427 of 2010

Judgment of:

Brown FM

Hearing date:

7 December 2012

Date of Last Submission:

7 December 2012

Delivered at:

Adelaide

Delivered on:

14 December 2012

REPRESENTATION

Counsel for the Applicant:

Ms Read

Solicitors for the Applicant:

Boril Olds

Counsel for the Respondent:

Ms Lee

Solicitors for the Respondent:

Franklin Legal

ORDERS

Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed URGENTLY to represent the interests of the children [X] born [in] 2000; [Y] born [in] 2002; and [Z] born [in] 2005 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
Further consideration of the matter is adjourned to 14 December 2012 at 2:15pm for delivery of expanded reasons for judgment following the orally delivered reasons this day and further directions.
The mother return the child [Y] to the care of the father at 7:00pm this day (7 December 2012) within the foyer of the [omitted] Police Station.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

An injunction issue and the mother be restrained from removing the children [X] born [in] 2000; [Y] born [in] 2002; and [Z] born [in] 2005 from the father’s care and approaching or coming within 100 metres of the children’s respective schools during school hours or within 100 metres of the father’s home.
The orders of 10 August 2011 whereby the parties are to share parental responsibility for the children and for the children to spend time with the mother are suspended.
If the mother fails to comply with order 4 hereof a recovery order issue forthwith.
Costs of today reserved.

IT IS NOTED that publication of this judgment under the pseudonym Sawyer & Clancy (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 427 of 2010

MR SAWYER

Applicant

And

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SAWYER & CLANCY (NO.2)

Details

AGLC: SAWYER & CLANCY (NO.2) [2012] FMCAfam 1369
Case: [2012] FMCAfam 1369
Decision Date: 14 December 2012

CaseChat Overview and Summary

In Sawyer & Clancy, the parties were involved in a dispute concerning the care and custody of their three children, born in 2000, 2002, and 2005. The Family Court of Australia was tasked with resolving the issues arising from the parents' conflict over the children's welfare and residence. The matter required urgent attention due to concerns about the children's safety and well-being, prompting the court to order the immediate appointment of an Independent Children's Lawyer to represent the children's interests.

The legal issues before the court included the necessity for an Independent Children's Lawyer to be appointed, the enforcement of a child return order, the suspension of previous parenting orders, and the imposition of an injunction to protect the children's safety. Additionally, the court had to consider the appropriate terms for restraining the mother from removing the children from the father's care and approaching the children's schools or the father's residence. The court's decision was influenced by the need to ensure the children's safety and to address the immediate concerns raised by the father.

The court found that the appointment of an Independent Children's Lawyer was crucial to ensuring the children's voices were heard in the proceedings. It also determined that an injunction was necessary to protect the children from potential harm and to prevent the mother from interfering with the father's care. The court suspended the previous orders that allowed the children to spend time with the mother, recognising the urgency of the situation. Furthermore, the court issued a recovery order to be activated if the mother failed to comply with the child return order. The costs of the proceedings were reserved for further determination.

The court issued several orders, including the urgent appointment of an Independent Children's Lawyer, a child return order, a suspension of previous parenting orders, and an injunction to restrain the mother from certain actions. The mother was also required to return the child immediately to the father's care, and failure to comply would result in a recovery order. These orders reflect the court's priority in safeguarding the children's welfare and addressing the immediate concerns raised by the father.

Orders

Orders of the court

Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed URGENTLY to represent the interests of the children [X] born [in] 2000; [Y] born [in] 2002; and [Z] born [in] 2005 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

Further consideration of the matter is adjourned to 14 December 2012 at 2:15pm for delivery of expanded reasons for judgment following the orally delivered reasons this day and further directions.

The mother return the child [Y] to the care of the father at 7:00pm this day (7 December 2012) within the foyer of the [omitted] Police Station.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

An injunction issue and the mother be restrained from removing the children [X] born [in] 2000; [Y] born [in] 2002; and [Z] born [in] 2005 from the father’s care and approaching or coming within 100 metres of the children’s respective schools during school hours or within 100 metres of the father’s home.

The orders of 10 August 2011 whereby the parties are to share parental responsibility for the children and for the children to spend time with the mother are suspended.

If the mother fails to comply with order 4 hereof a recovery order issue forthwith.

Costs of today reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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